Huge power grab or major legal stretch?

If Attorney General Lisa Madigan succeeds in convincing the Illinois Supreme Court to consider ordering the state to stop paying employees without an appropriation and the governor’s legal team uses the same arguments as it did in St. Clair County, we could be in for a highly unusual argument.

First, a little background. The Illinois Constitution and state laws are clear that no state money can be expended without a legal appropriation, which is legislative speak for a special kind of bill that lists how much government agencies, commissions, etc. can spend on various items.

As you probably know, the state hasn’t had a “real” budget in a couple of years. A budget is basically just a collection of appropriations. The last legal appropriation for state employee payroll expired on June 30, 2015. Negotiations between the governor and legislative leaders stalled, and shortly thereafter, a judge in St. Clair County ordered the state to pay its workers anyway. Everybody back then figured this would probably be a temporary situation, so nobody squawked too much. It’s been done before for a few weeks. No big deal.

Except, as we are all painfully aware, the governmental stalemate has continued for more than 20 months. In January, Attorney General Madigan got tired of waiting for the governor and the General Assembly to cut a deal and filed a legal motion in St. Clair County to vacate that 2015 order. She lost. We’re not sure exactly why because the judge didn’t issue a formal opinion, but the governor’s office was at that hearing and filed a brief opposing AG Madigan’s motion.

The governor doesn’t want AG Madigan to win because his bargaining position will be greatly weakened if the courts effectively shut down the state by ruling that money can’t be spent without appropriations. Rauner is demanding some business-related reforms, a property tax freeze and a few other things before he’ll agree to a tax hike to balance the state’s infamously out-of-whack budget. So, the man who once bragged that he would use the crisis of the state not having a budget to force through his preferred legislative changes now wants to avoid a much worse crisis that would compel him to abandon his demands in order to prevent the catastrophe of an actual government shutdown.

Got all that? OK.

One of the arguments used by the governor’s lawyers when they won at the county level last month was that a bunch of state laws are in reality “continuing appropriations.” A continuing appropriation is a law mandating that certain state bills be paid in perpetuity. The General Assembly isn’t required to pass new appropriations every year and the governor isn’t required to sign them into law. It’s automatic pilot spending.

But the governor’s lawyers want to redefine what a continuing appropriation is. According to the governor’s legal brief, “there are many statutes that function as continuing appropriations by mandating the state to perform specific services. Employees who provide those services must continue to be paid.”

Examples the governor’s legal eagles used included a state statute which mandates that the Illinois Department on Aging “shall exercise, administer and enforce all rights, powers and duties vested in the Department on Aging by the Illinois Act on the Aging.” Complying with these and other mandates, they claimed, “necessitates paying personnel” because compliance can’t be accomplished without employees.

The governor’s legal team then argued that it would take a lot of time to sift through all state laws to find these mandates, and that the task needed to be followed up by “evidentiary hearings to assess what employees are necessary to provide such services.” Such a process could take months, if not years. There are a ton of those mandates in the state statute books.

Needless to say, if such an argument prevailed it would give the executive branch almost limitless authority to spend taxpayer money as it pleased. And it wouldn’t end with employee salaries, either. If the Department on Aging determined that it needed a big new Chicago office building to perform its mandated functions, or had to let millions of dollars in new contracts, or had to purchase a dozen new vehicles, then, under the governor’s legal logic it could go right ahead and do so without any legislative approval whatsoever.

The governor’s team references what it considers to be favorable court rulings from 1953 and 1974, but this is either one of the most blatant executive power grab attempts I’ve seen or the biggest legal stretch ever. Rich Miller also publishes Capitol Fax, a daily political newsletter, and CapitolFax.com.